PJ7 


A   PROTEST 


BY    THE 


DEMOCRATIC     SENATORS 


OF    THE 


LEGISLATURE  OF  CALIFORNIA, 


ON    THE 


^SOLUTIONS  CONDEMNING  THE  PRESIDENT 


AND 


INDORSING    CONGRESS. 


SAC  R  AM  E  N  T  ()  : 

D  .     W  .     G  E  L  W  I  C  K  S  ,     S  T  A  T  K      I'  R  I  N  T  E  R. . 

1868. 


A   PROTEST 

// 

BY    THE 

DEMOCRATIC     SENATORS 

OP    THE 

LEGISLATURE  OF  CALIFORNIA, 

ON    THE 

RESOLUTIONS  CONDEMNING  THE  PRESIDENT 

AND 

INDORSING    CONGRESS. 


PROTEST. 


In  the  Senate  of  California,  when  the  resolutions  were  under  discussion 
condemning  the  President  and  indorsing  Congress,  Senator  Maclay,  of 
Santa  Clara,  presented  the  following  protest,  which  he  desired  to  have 
spread  upon  the  Journals: 

WHEREAS,  an  attempt  is  being  made  to  impeach  the  President  of  the 
United  States  for  an  alleged  violation  of  the  "  Tenure  of  Office  Act," 
Congress  asserting  and  the  President  denying  the  validity  of  said  Act; 

And  whereas,  THE  PEOPLE,  in  their  wisdom,  have  "  provided  a  suitable 
mode  and  tribunal  for  settling  questions  of  constitutional  law,"  by 
declaring,  in  the  Constitution,  that  the  judicial  power  of  the  Govern- 
ment "  shall  extend  to  all  cases  arising  under  the  Constitution  and 
Laws  of  the  United  States;" 

And  whereas,  in  pursuance  of  the  clear  and  express  provisions  of  that 
instrument,  "Congress,  at  its  very  first  session,  by  the  'Judicial  Act/ 
provided  a  mode  for  carrying  the  fundamental  law  into  eifect  and  for 
bringing  all  questions  of  constitutional  authority  to  a  final  decision  at 
the  bar  of  the  Supreme  Court ;" 

In  view  of  these  facts,  it  is  our  opinion  that  Congress  has  no  right  to 
usurp  the  functions  of  the  Judiciary  by  passing  on  the  constitutionality  of 
their  own  enactments  and  enforcing  their  construction  thereof  on  the 
other  departments  of  Government.  That  the  President,  in  the  dis- 
charge of  his  sworn  duty  to  "  defend  the  Constitution,"  has  the  right, 
and  that  it  is  his  duty,  if  he  believes  an  Act  of  Congress  unconstitutional, 
to  resist  its  enforcement  until  a  judicial  decision  is  had.  That  Congress, 
in  the  passage  of  an  Act,  believing  it  to  be  warranted  by  the  Constitution, 
commits  no  wrong  should  the  Act  prove  unconstitutional.  And,  on  the 
other  hand,  that  the  President  does  no  wrong  in  resisting  the  execution 
of  an  Act  of  Congress,  believing  it  to  be  in  violation  of  the  fundamental  law 
should  it  prove  to  be  valid.  For  both  discharge  the  duties  imposed  upon 
them  and  the  trust  committed  to  them  under  the  dictates  of  conscience, 
the  acts  of  each  lacking  that  intention  which  must  be  coupled  with  every 
act  t6  constitute  criminality.  That  when  such  a  case  does  arise  it  is 
beneath  the  dignity  of  the  Executive  or  of  Congress,  and  dangerous  to 


the  stability  of  our  Government  and  the  liberties  of  our  free  people,  for 
the  one  to  impute  criminality  to  the  other;  but  much  less  right  has  the 
Executive  Department  to  attempt  the  destruction  of  the  Legislative 
Department  for  the  passage  of  such  an  Act,  or  the  Legislative  the  right 
to  attempt  the  destruction  of  the  Executive  Department  for  refusing  to 
enforce  such  an  Act.  That  the  remedy  for  the  mischief  done  by  either 
lies  in  an  appeal  to  the  Judiciary;  that  when  their  decision  is  made  it  is 
final  and  binding  on  the  other  departments.  Submission  then  becomes  a 
duty  and  resistance  a  crime. 

For  these  reasons  we  believe  the  impeachment,  conviction  and 
removal  of  the  President  from  office  on  the  charge  of  having  violated, 
or  attempted  to  violate,  the  provisions  of  the  "  Tenure  of  Office  Act," 
before  the  Supreme  Court  shall  have  first  decided  that  Congress  had  the 
authority  to  pass  said  Act,  would  be  a  measure  not  only  of  folly  and  of 
injustice  to  the  President,  for  which  no  adequate  atonement  could  be 
oifered,  but  would  entail  great  reproach  and  odium  on  Congress  and  the 
country.  -  -rfsew 

Therefore,  influenced  solely  by  a  sincere  desire  to  preserve  the  peace, 
the  honor  and  the  dignity  of  our  common  country,  believing  that  all 
proceedings  touching  the  matter  of  impeachment  should  be  arrested,  at 
least  until  the  Supreme  Court  shall  have  decided  whether,  in  point  of 
fact  and  of  law,  the  "Tenure  of  Office  Act"  be  constitutional — we,  the 
representatives  in  the  Senate  of  principles  which  we  believe  to  be  domi- 
nant in  this  State,  do  hereby  solemnly  protest  against  the  resolutions  on 
the  question  of  impeachment,  passed  by  this  body. 

JOHN  H.  SAUNDERS, 
JOHN  S.  HAGER, 
G.  W.  HUNTER, 
CHARLES  MACLAY, 
A.  H.  ROSE, 
J.  W.  MANDEVILLE, 
N.  GREENE  CURTIS, 
WM.  WIRT  PENDEGAST, 
JAMES  JOHNSON, 
WM.  A.  CONN, 

F.  A.  MACDOUGALL, 
J.  W.  FREEMAN", 
D.  L.  MORRILL, 

WM.  J.  SHAW, 
E.  J.  LEWIS, 
P.  W.  MURPHY, 
JAMES  H.  LAWRENCE, 
GEORGE  PEARCE, 
H.  K1NCAID. 


_ 


tithomount 

pamphlet 

Binder 

Gaylord  Bros.,  Inc. 

Makers 
Stockton,  Calit. 

PAT.  ]ffi  21,  1908 


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